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In re In re Stauffer Chem. Co.

The court issues a preliminary injunction restraining the Environmental Protection Agency (EPA) from conducting an inspection of an emission source with non-Agency personnel, ruling that under § 114(a)(2) of the Clean Air Act only EPA employees have a right of entry to make inspections. In support of this conclusion the court notes that (1) the text of § 114(a)(2) indicates that the term "authorized representative" applies only to EPA employees, (2) EPA has adopted inconsistent interpretations of this section of the Act, (3) § 114(a)(2) should be interpreted to parallel the restrictive entry provision in § 208(a), (4) inspections of this type are normally viewed as a governmental function performed only by government employees, (5) non-Agency employees cannot be held to the same standards of confidentiality as governmental employees, (6) if non-Agency inspectors disclose trade secrets gleaned on inspections, the source owner would have great difficulty in obtaining legal remedies, (7) the legislative history of the Federal Water Pollution Control Act (FWPCA) indicates that Congress intended inspections under the Clean Air Act to be conducted by Agency employees only, (8) § 114(a)(2) should be interpreted to parallel the restrictive entry provision in § 308 of the FWPCA, and (9) EPA interpretations of § 114(c) of the Clean Air Act indicate that the term "authorized representative" in § 114(a)(2) applies to EPA personnel only. The court adds that it was unreasonable for EPA to seek an ex parte warrant to conduct the search and states that bringing non-EPA employees into the plant constituted an excessive use of force.